On Anniversaries

It's a bumper year for Anglophone medievalists.  We have Agincourt (600 years) and we have Magna Carta (800 years).  Both have become emblematic historical moments, and there's a lot to be gained from thinking carefully and publicly about these events - in the case of Magna Carta, commemoration challenges us to think about the place of the law today, in some ways less and less accessible because of the erosion of legal aid.

But I think the most interesting anniversary is that of the Fourth Lateran Council.  This was the Church council convened by Innocent III in 1215 which did so much to streamline the role of the Church throughout Europe.  Its implications stretch way beyond the history of the Church - it was the point at which a big impetus was given to the persecution of heretics; marriage, baptism and confession were codified; the idea of Purgatory was formalised; canon law (the law of the Church) was imposed more uniformly across Europe.  The net effect of these impulses (I withhold judgement on the extent to which they were actually practised) was to systematise and to streamline the ways in which people were to think about religion and law.

There's much to admire in the Council, and much to find terrifying.  Innocent III himself was the figure who had responded to the French king Philip II, who wished for a marriage annulment, with the words: 'We have an immoveable mind, and an immoveable intention.  Not by prayer, not by price, not by love, not by hate, shall we swerve from the path of righteousness.  We shall walk the royal road.  We shall not deviate to the right.  We shall not deviate to the left.  We shall make judgements without taking up persons.'  This was about law as a system.  There were to be no favouritism, no bribes, no exceptions.  It's surely a critical moment.  Innocent was also the figure who pronounced Magna Carta null and void as soon as he possibly could.  None of these anniversaries are unambiguous.

Innocent III, from the Grandes Chroniques.  Source: wikimedia

I wonder why we are so much more willing to remember Agincourt and Magna Carta (and Waterloo), than something like Lateran IV.  My first instinct was to assume that this is essentially nationalist (in the broadest sense).  But (since nostalgia is so often on my mind at the moment), I wonder whether Agincourt and Magna Carta are more appealing because they lend themselves to romanticisation - both look like the victory of the weak over the mighty.  The outnumbered English soldiers and the courageous barons, make for edifying David and Goliath type stories.  I can't think of a way to romanticise Lateran IV - Innocent III was powerful, determined and unassailable.

SLAVERY 17 - THE MORAL AND THE LEGAL

The starting point for my interest in slavery arose from trying to think about notions of property and ownership from the perspective of legal anthropology.  In this sense, it has been really fascinating to look at the ways in which people thought about slavery from a secular legal perspective, from a canon (Church) law perspective,  in a moral sense and in an economic sense.  These different frames of reference often overlapped, but they often contradicted and undermined one another.  For instance, various historians (eg. Susan Mosher Stuard) have shown how the apparent decline of slavery in the first half of the fourteenth century was explained by contemporaries in moral terms which provided a useful gloss over their actually much more hard-nosed economic motivations (the Italian market had made slaves too expensive).   Secular law in Dubrovnik banned the export of slaves in 1416 in what looks like a fairly clear statement of legal disapproval of the concept - and yet, there are many cases of slavery after this date, and increasingly draconian punishments for slaves who escaped. Canon law forbade the enslavement of fellow Christians, but it is clear that many of those enslaved were Christians even before their capture.

These clashes and contradictions explain some of the details in the records.  Two slave girls sold in 1398 (Diversa Cancellarie 33, fol 129r) were specifically described as Patarene, a heretical sect - a rather useful way of skirting around the moral problems of enslaving children with clear religious views.  In 1380, a slave trader was sued by three girls who claimed that he had sold them as Paterenes when they were, in fact, Christians - the heretical label was so useful as to be deliberately misappropriated (Diversa Cancellarie 31, fol 81r).  The timing was crucial in this case - the girls needed to demonstrate that they were Christian before they became enslaved.  And this tells us that the Christian men and women of Dubrovnik (and plenty of other European towns) had found a way to interpret canon law literally and rigidly: the law said one could not enslave a Christian, it did not say that someone could not continue to be a slave once converted.  It seems to me a classic example of rigid legalism providing a means of absolute moral obfuscation.

Incidentally, there were converts, and there clearly were owners who chose not to exploit the disjunctions between moral, legal and religious universes in this way.   In 1439, we find a case of a slave converting and joining, with the permission of his master, a monastery as a (sort of!) free man (Diversa Notariae 23, fol. 83v)

SLAVERY 11 - the archives

The archives in Dubrovnik are housed in the Sponza Palace.  Most the building seems to have been completed by 1312. The ground floor was used as a customs-house, the first floor was for social occasions, and the second floor was the mint and dates from 1520 according to an inscription.  The famous Renaissance arcade in front was probably also added in 1520, whereas the elaborate windows of the first floor date from the fifteenth century and are recognisably Venetian in style. Caravans to the Balkan interior gathered in front of the building.  The elegant architecture bears visual witness to the interconnectedness of Dubrovnik with much wider trade networks across the Adriatic.

Inside the archives...

The archival collection itself began to be systematically put together from a very early date.  From the thirteenth century, notarial practices became so sophisticated that it was possible to file the documents very carefully.  The keeping of the archives was re-codified as a state activity in the 18th century, at which point they reclassified the collection into 14 series.  In the nineteenth and twentieth centuries, much of the material was taken away to Vienna, returning to Dubrovnik in 1920 where it was re-inventoried and in 1952 relocated to the Sponza palace.  The importance of these archives for a sense of political identity was key.

This tells us something beyond how to access the documents we want: it testifies to the symbolic importance of such archives, and the ways in which documents can are not only shaped by the history of a place, but become part of the history of a place.The parchment (or paper) doesn't just communicate what happened - in many ways, it is what happened.

In the documents that I've looked at there is a real sense that these matter as documents, not simply for what they tell us.  The contract of a sale of a slave doesn't just communicate the sale - it stands as a symbol for perpetuity of that person's status.  Even so, there was anxiety that documents might be challenged, and for that reason, particularly after manumissions of slaves, we find a clause stating that any subsequent document which might be produced cannot invalidate the one in hand.  Documents were referred back to in order to respond to challenges and prove ownership, they were registered in different places (loose contracts were officially registered in the notarial register - eg. a sale of 1339 as a loose leaf, then copied carefully into the Debita Notariae 2 fol. 270r), they were lost and then found.

So in the archives,we find not only the record of history, but we are handling history - touching the material things which embodied relationships of such importance.

SLAVERY 10 - Warranties

I use the word 'warranty' not really for its legal implications, but because the nature of some of the contracts I've looked at has made me think of washing machines and mass-produced electrical goods. It's chilling to find another human being guaranteed for a certain length of time, as if they are nothing more than just another product.  And I suppose that it's odd also in the sense that guarantees of good working order for a particular length of time tend to refer to things which have been manufactured, ie, to a subset of commodities more generally: one might have expected slaves to be part of a different subset, and yet, clearly, their training and character was felt to be the responsibility of the trader to some extent.

For example, in 1280, a trader called Serdanus sold Tuerdoe of Bosnia with a money-back guarantee if she should run away within three years (Debita Notariae 1, fol 29r).  The sale was for life, the guarantee for three years - as if after that, the trader could hardly be held responsible for the long-term usefulness of his product. Weirdly, it's the three year limit on the guarantee, rather than the guarantee itself, which I find particularly unsettling - somehow it objectivises the woman more than anything.

The first archives I've worked in, where we're told not to wear bikinis or eat ice-creams.

SLAVERY 8 - DEFINITIONS


The archives are shut today, so time for some swimming and some reflection...

View towards Dubrovnik from the island of Lokrum

One of the biggest challenges in working on slavery is attempting to arrive at a definition.


The Oxford English Dictionary offers the following definition : 'One who is the property of, and entirely subject to, another person, whether by capture, purchase, or birth; a servant completely divested of freedom and personal rights.'


'In 1926, the slavery convention defined slavery as ‘the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised’. In 1930, the definition was expanded to include all those obliged to do forced or compulsory labour, defined as ‘all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily'.

One of the big debates concerning slavery in Dubrovnik, with which I am grappling, lies in the distinction between slavery and indentured labour, and the point at which a transition was made between the two– I hope to have more to say about this in due course. It’s clear that a flooded labour market would reduce the need for slavery and turn it into the more expensive option; and that a form of labour which involved selling one’s services for a set number of years would be far more appealing to owners/ employers, who would therefore be able to shed responsibility for slaves in their old age and could profit with no drawbacks from the most productive years of a person’s life. It had the added advantages of appeasing late medieval consciences, aware that slavery was against the teaching of the Church. It’s an important distinction, and I shall be looking at the legal implications, as well as the ways in which this tied into increasingly problematising moral statements on the subject of slavery. But I don’t want to lose sight of the essential enslavement of these people in either case. And I suspect that this might be an area in which legalism can serve to obfuscate the total abnegation of human rights.

The point was recently brought home particularly forcefully by the shooting in Greece of 28 immigrant strawberry pickers, who had the apparent temerity to demand their wages for the past six months. Whether or not, these people were formally the property of their employers in many ways seems irrelevant when they were refused pay, forced to live in squalid conditions, and obliged, by physical force, to continue working.

Orlando Patterson in his Slavery and Social Death defines slavery as ‘the permanent, violent domination of natally alienated and generally dishonored persons’. He describes the legal qualities of as an idiom rather than an essential characteristic of slavery. I’m not sure that legalism, honour, violence etc can be so easily separated – but there is a very important point here.

Whilst the United Nations now clearly points to the multiple forms of enslavement, we’re all too ready, as a public, to turn a blind eye and allow the kind of obfuscations which continue to provide cheap produce without troubling our consciences.


There is a useful article here.

SLAVERY 6 - NUANCES

It's one in the morning, so this will be quite quick!

The view from just outside our flat.

One of my main goals is to examine the terminology of slavery contracts really carefully, and to scrutinise the shift from clear slave-owner relationships to a more complex form of indentured labour which became more prominent in the fourteenth century.  In other words, we seem to see a shift from contracts which describe the outright sale of one person to another 'diffinite ad mortem' ('valid until death'), to contracts which describe the purchase of someone's labour for a fixed number of years (typically around twelve years).  There's loads more to be said about this - how do we distinguish apprenticeships from indentured labour? was the shift really so straightforward? and, most obviously, did labour contracts as opposed to slavery contracts actually make any difference to the worker?

My gut instinct is to say 'no'.   Selling oneself (or one's child, or one's brother - I came across several cases like this today) for twelve years implies to me a pretty horrific form of slavery - the loss of twelve years of one's life, the surrender of all one's rights for that time, and the knowledge that at the end of it, one is, once again destitute (at least most slaves were fed and clothed in their old age).

But today, whilst trawling through looking for cases of slaves who'd been freed (again, another fascinating topic, and, sadly, not one which sheds much positive light on human nature), I noticed one Obrada de Trebotich (fol 100r., Diversa Notariae I).  She managed to buy her freedom from her owners, Stanissa and Rossinus de Bereia, on payment of seven pounds.   Where did she get the money from?   By selling herself for seven years to Marinus Fuschus de Zerepo.  

This brought home to me very forcefully that the distinctions between these different kinds of contract really did matter.  It must have been incredibly challenging for Obrada to manage such a transaction, so it must have meant a lot to her.  Freedom, sad to say, seems to come only in degrees.

SLAVERY 5 - CONSENT

"Dubrovnik IMG 9664" by Bjoertvedt . 
Creative Commons Attribution-Share Alike 3.0 via Wikimedia Commons - 

Another intriguing day in the archives.   I'm looking at records (mainly contracts) from the 1280s at the moment.  Here's a standard contract from 1280 of the sale of a slave:

Die xxiiii October Ragusii. Juannus filius Clapote presentem et consentietem ancillam suam Constanisclavam de Bosna vendidit Michaeli Lucari c per s. dr. gross. quinque et  dimidem. Diffinite ad mortem.   Testis Sersius Clementis Iudex. (fol. 28r, Debita Notaria I).

24th October, Ragusa.   Juannus son of Clapotus, sold his slave Constanisclava from Bosnia, who was present and consenting, to Michael Lucarus for five and a half gold coins. Valid until death.  Witnessed by Sersius Clementis, judge.

Why bother to include the presence and consent of the slave?  And what kind of consent could this possibly be?  In a sense, this is part of the moral obfuscation of slavery in the thirteenth century.  Canon law said that enslaving fellow Christians was wrong, but it didn't straightforwardly exonerate the enslavement of those of other religions either.  Legally, slavery might have been just about acceptable, but the formula 'presentem et consentientem' - the need to claim that the slave was perfectly ok about what was happening to him or her - suggests that morally people knew it to be problematic.  The apparent consent of the slave seems to me like a sop to conscience.

It's something more than this too, for it tells us much about why and how people became enslaved.  Many were certainly captured as a result of war or raids.  But today, I found increasing numbers of cases in which people were selling themselves, or their children, into slavery as a result of extreme poverty.   In such cases, it certainly happened with their consent  - they initiated the transaction - but that doesn't mean that this was a real choice.

On 12th June 1281 for instance, 'Ego quidem Dabrenus filius Zueti Tragurini confiteor quod mea bona voluntate dedi et vendidi me pro servo Elye Blasii de Rasti pro s. dr. grossi quatuor et dimidi diffinite ad mortem, ut dictus Elias de presenta mea velle suum faciat'. (fol. 57r).

I, Dabrenus son of Zueti Tragurinus record that I gave and sold myself, of my own free will, as a slave to Elias Blasius of Rastus for four and a half gold coins, valid until my death, so that the said Elias can do with me as he pleases. 

We tend to define slavery not just as ownership of other people, but the total abnegation of their right to choose.  Whilst the idea of consent in these Dubrovnik cases is often just a formula, it also reminds us that 'choice' and 'consent' aren't straightforward: saying that someone did something of their own free will ignores the circumstances which limit that choice and can sometimes be a convenient way of side-stepping more disturbing realities.

FERGUSON, USA, 2

Yesterday, I tried to show that violent law enforcement exacerbates, rather than diminishes popular violence.

There's another logic to the Ferguson riot violence - which now seems to be abating - and it's horrifyingly simple.  If you have no other way to make your voice heard - if you are part of a marginalised group, if the law offers you little redress, if you do not have the financial means to fund your political preferences - violence can seem like the only way.  And it's striking that this should be the case in what is lauded as the world's greatest democracy.

I've been working on an article on the St Scholastica's Day riots in Oxford in 1355.  On 10^th February 1355, two students named Walter Spryngeheuse and Roger de Chesterfield went out together for a drink at a tavern.  Angry at the poor quality of the wine they were served, they complained, quarrelled with the tavern-keeper, and threw their drinks in his face.  The students proceeded to beat the tavern-keeper, and the brawl swiftly widened.  The chancellor refused to arrest the students, who instead rang the bell of the University Church, summoning 200 others who joined in the violence against the tavern-keeper, his friends, family, and even the mayor.  On the second day, the students continued their violent rampage through the town, burning houses, robbing the townspeople, and closing the gates of the city.  At this point, the townspeople gathered themselves to retaliate in the most brutal terms.  They attacked the students with bows and arrows, beating and killing any scholars they could find; on the following day, the townspeople were joined by people from the countryside in ever more brutal attacks on students, killing, maiming, scalping any they could find.

Oxford University Church (image from wikicommons): the bells of this Church were rung at the start of the riots.

The violence was clearly started by the students, but the violent retaliation of the townspeople was brutal and horrific (and the town continued to pay, literally and metaphorically, for its misdeeds for years afterwards).  

Why did the townspeople behave quite so violently?  Clearly it was partly because students were a pain in the neck.  But more than this, it was because the townspeople had effectively been deprived of any other means of redress.  The king had been anxious to secure every possible privilege for the students, and to protect them from economic exploitation by the townspeople, with the result that the townspeople felt marginalised and excluded.  And this was felt in a very concrete sense in the jurisdictional status of the townspeople.  Whereas the students were exempt from any but the university Chancellor's court, the townspeople were obliged to appear in this court for any case where a student was also involved: it seemed clear that they would always therefore lose out, as this court was clearly heavily weighted in the University's interest.  Decades of scholarly privileges had marginalised and excluded the townspeople, and violence was pretty much their only remaining means of expression.  Incidentally, the motif of scalping students wasn't just mindlessly brutal: the jurisdictional privileges of students came from their clerical status, status which was signified by their tonsured heads: so the scalping was a brutal protest against the total judicial disenfranchisement of the townspeople.

None of this justifies violence: far from it.  But again and again, it is clear that everyone must be given a chance to speak and a chance to be represented.

GUILTY AS CHARGED?

I'm going to bore you with one more post on law, and then I'll write about what I got up to last week...

One of the oddest things, I think, in practice about court cases nowadays, is the strategic use of pleas. In other words, pleading innocent or guilty is not just about whether one believes oneself to be innocent or guilty - it's a way of attempting to shape the jury and the judge's response - it's a bargain in many cases.  And one of the alarming predicted consequences of changes to the legal aid system, given that lawyers will be paid a flat fee, seems to be that more people will be persuaded by their lawyers to plead guilty in the hope of a swift outcome.  This makes the notion of 'innocent until proven guilty' extremely problematic, as it rests on the assumption that some people just seem guiltier than others.  And that means that outcomes will more than ever be shaped by stereotypes, labels and reputations.  This is an extremely medieval approach, as in late medieval legal practice, the reputation  or 'fama' of a person could be the element which brought them to court in the first place - it was enough to initiate a case ex officio.  A few years ago, there was a popular knock-knock joke:

Knock-knock

Who's there?

O.J. Simpson

O.J. Simpson who?

Right - you're on the jury.

It was proving almost impossible to conduct a legal process without jury members already being extremely prejudiced against the defendant, because the case was so notorious.  In the Middle Ages, the joke would have been pretty much the other way round - one wanted jury members who were aware of the prior reputation of the defendant, as that was part of the case.

Given that stereotypes and reputations are unreliable, often class dependent, and reflect the prejudices of observers as much as the behaviour of the subjects, it seems to me an unequivocally good thing to have left such a system behind.  But have we really?

I thought I'd turn to Montaigne to have a look at what he says on the subject of law.  In his essay on laws and customs, he tells a brilliant story of a young woman who nurses a calf.  She carries the calf around when it's very tiny, and, by force of habit, barely notices how big it gets, and is still carrying it around when it's a fully grown cow.  Given how heavy my little boy is getting, I particularly like the tale!  Typically for Montaigne, the story must be tongue-in-cheek and he not as credulous as he pretends to be.  But it has an important point.  Custom deadens us to the ridiculous, and it deadens us to the unacceptable.  Many of the recent changes to the legal system in recent years have been much talked about - eg. 40 day detention without trial - but many haven't stimulated all that much discussion - eg. changes to legal aid.  It's these little, almost imperceptible changes, which add up in what can add up to some pretty alarming conclusions.

MAGNA CARTA AND NOW

I'm afraid that my aim to publish a post on the subject of law each day last week went overboard in the flurry of conferences and examining.  However, there was still lots of time for thinking.  I'd also like to thank those who've sent comments to previous posts - either on Twitter or here - they've been provocative and useful, and I'd love to hear more...

Illustration of a judge From Peniarth 28 manuscript c. 1250

And it occurs to me that using the much vaunted Magna Carta in order to critique modern day applications of law is perhaps only part of the story.  Because, much as we might hold up Magna Carta as the ultimate expression of constitutional freedoms, it isn't!  So perhaps the more useful thing to do is to think about the shortcomings of Magna Carta and the ways in which we are so conspicuously failing to address those shortcomings 800 years later.

Most obviously, there was no supreme court in the thirteenth century.  So the rights and privileges enshrined in Magna Carta were all very well, but ensuring that they meant something in practice was trickier.  Are we in a similar situation now? - where the politicisation of law - eg. detention without trial - lacks the checks and balances of a supreme court?  At the time of Magna Carta, the enforcers were the king's own servants, so the idea of reining in the power of the monarchy was deeply flawed. Again, have we established sufficient safeguards now? - imprisonment without trial is effectively in the hands of the same political establishment as any who might be able to limit its use.

It's also useful to flip things around and think about it from the perspective of the litigants.  We tend to assume that Magna Carta defended the rights of the users of law, and upheld the principles which protected them.  But from the point of view of those users, although they clearly cared about the principles, the integrity of Magna Carta over the years was, to a great extent, challenged by the fact that, really, people wanted to win.  In each individual case, winning, understandably, tended to mean more to people than defending abstract ideas of justice - when it's your own livelihood which is at stake, things look a bit different.  And I wonder whether this is also something to worry about now - moral principles about law must compete with the users' very justifiable desire for a positive outcome.  Our highfalutin discussions ultimately mean little in most cases unless members of society feel sure and safe.  And this is a tension which is all to easy for politicians to exploit.

WHO IS LAW FOR?

One of the most famous clauses of Magna Carta states that law is there for everyone – ‘to no one will we deny right or justice’.  But we all know that everyone doesn’t mean everyone.  Who was excluded?  Quite simply, the charter only included freemen – and huge numbers In England in 1215 were technically unfree and therefore ineligible for the supposed guarantees and protections offered by law.  As David Carpenter puts it: ‘The barons might speak of ‘the common charter of the realm’, but it was far more common for some than it was for others’.  It was radical enough to frighten the pope into annulling it, but not radical enough genuinely to offer the same legal redress to every human being.

I think my point regarding the pared-down legal aid system is probably pretty obvious – law is not there for everyone (if, indeed, it ever has been).  Ken Clarke’s comment about recourse to other forms of negotiation basically means that litigation is only for those who can afford it.

Perhaps a more subtle perspective lies in the visibility of law.  By 1300, lots of copies of Magna Carta were being translated into the vernacular and posted in public places.  But, as Michael Clanchy points out, this wasn’t so much about legibility as about visibility.  The difference being that most of the viewers of the document couldn’t actually read it, but the posting of such a document in the vernacular was a powerful gesture which nevertheless ensured that the specifics weren’t understood in too much detail.  There’s obviously a level of hypocrisy here, intended or not.  Posting such a document is claiming accessibility for all to legal process, but failing to ensure that all are able to understand their rights.

This is surely a kind of hypocrisy that we should aim to avoid.  And one reason why a legal aid system which claims to protect everyone, whilst actually ensuring that legalism remains distant and obscure to many, is surely extremely pernicious.

SELF-HELP

Solomon in old age, c. 1866

In an attempt to obscure the basic financial motivation, Ken Clarke has justified the changes to the legal aid system by condemning what he sees as extreme litigiousness and claiming that ‘people will instead use alternative, less adversarial means of resolving their problems.’  As Joanna Biggs puts it, 'perhaps they imagine that if we all sit in a circle and share our grievances, without lawyers ruining it all, everything will be fine'.  There are many alternatives to litigation - sitting and resolving grievances over a cup of coffee is one of them.  Violent self-help is another.  The latter was, of course, particularly prevalent in the Middle Ages: even in the later period, when 'state' law was apparently more effectively promoted, we still find a bewildering variety of types of law to which people could appeal, and a range of extra-legal 'negotiation', often of a violent type, throughout Europe.

I don't honestly think that violent self-help will rise dramatically because people can't afford recourse to the law - though you never know.  But I do think that the kinds of clearly unacceptable power dynamics which emerge in violent self-help also characterise coffee-table discussions to resolve grievances.  One of the main points of law (and I'm well aware that it doesn't always work like this - but surely it's part of the theory of the way we now think about law - Magna Carta and all that) is to ensure that hierarchies which have nothing to do with the case don't shape the outcome.  In other words, the legal process is supposed to view all participants equally.  Resolving disputes in other ways doesn't necessarily provide this assurance, and all kinds of other factors come into play to ensure that those with power, be it of an economic or a socio-cultural kind (education, cultural capital, powerful friends etc), are in a stronger position.  

A case from Arras in the 1290s makes just this point.  A woman reached a financial settlement with the family of her son's victim, though the amount of the settlement makes it clear that the family must have been pressurised into accepting.  But there is an added twist when it emerges that the mother herself did not want to enter into these negotiations, but was blackmailed into doing so by the local legal official who took a chunk of the financial payment.

There are no obvious parallels here, and I'm suggesting neither that murder cases will be financially 'resolved', or that legal officials will be so blatantly corrupt - but I do think that these types of cases in the Middle Ages remind us of what we hope our legal system should achieve, and to problematise any easy notions that extra-legal solutions do not carry considerable inequities.

1215

This isn't my pin number.  It's the date of Magna Carta.  

I'm pretty appalled by the cuts to the system of legal aid, and I'm going to post some reflections on these each day of this week.  It's hard to know where to start in critiquing these changes, but it's clear that the right of a huge proportion of the population to a fair trial has been undermined.

British people, and particularly politicians, are fond of quoting the constitional freedoms apparently enshrined in Magna Carta: knowledge of this is supposed to be part of the preparation for the citizenship test.  And yet, one of the fundamental, and certainly the most quoted clauses of Magna Carta is the right of all to due process and a fair trial.  And, right now, this is being eroded in so many ways.

This is particularly ironic as many medieval historians are busying themselves for the 800th anniversary of Magna Carta in 2015.  There won't be much to celebrate, as freedoms and access to a fair trial become the preserve of the few.

But 2015 will mark another anniversary - Lateran IV.  This was the hugely important Church council in which the foundations were laid for the systematic persecution of religious difference.  At this rate, this will be a more appropriate anniversary.

If you're interested in Lateran IV, have a look at R. I. Moore's book, The Formation of a Persecuting Society (1987)

Yesterday, I published a post about violence on the OUP blog here.  And, by the way, please do feel free to post comments on the blog - I'd love to hear others' opinions...

TERRORISM AND LAW

I've spent a few days wondering what on earth there is to say about the horrible murder in Woolwich, and the ultimately pretty distasteful political wranglings that have followed it.  In a way, adding another voice to the cacophony isn't very helpful.

But what puzzled me most about the political reaction to the incident was why this counted as terrorism. On the one hand, why focus so much on this when homicide rates in London are high and stabbings all too common?  And on the other hand, why describe this as terrorism when the victim was a soldier (albeit off-duty)?  An article by Glenn Greenwald gave me some interesting answers to these questions, arguing that the problematic and actually very hypocritical designation of this killing as an act of terrorism is tempting for politicians because it packs such a 'political, cultural and emotional punch'.  And, of course, because the perpetrators are deemed to fail to abide by the rules of war (notably in targetting non-combatants), terrorists are answerable to the rules of ordinary criminal law, rather than the laws of wartime which permit killing.

This last point strikes me as perhaps the most revealing one here.  Law is very often a function of power.  What better way of asserting authority both practically and symbolically than through the exercise of law?  How law and power are intertwined is more complex however, but it strikes me that one of the most effective mechanisms for bringing this about, is to convince people that law and morality are the same thing.  They're not - of course - but conflating the two makes law an incredibly powerful (and reassuring) tool.  

William de Brailes, The Israelites Worship the Golden Calf and Moses Breaks the Tablets (Exodus 32:1-19), Walters Art Museum, W.106.13R

In the later Middle Ages, this elision of law and morality was certainly one which kings, as lawgivers, attempted to make.  But it was harder to convince people, because there were so many different kinds of law - in England for example, there was common law, customary laws, ecclesiastical law, forest law, maritime law, the laws of war, and so on.  Which set of legal rules applied depended on place, context, and who was involved.  Faced with such a diverse set of laws to choose from, in many ways it was far more obvious that law was a changing and historically contingent thing, far removed from what was supposed to be the more constant nature of morality.  Lawgivers couldn't pretend to exercise the same moral hegemony and control.

My point is that nowadays, it is less obvious that there are lots of types of law.  And therefore, we are all the more ready to accept the conflation of law and morality uncritically, without thinking about the political drive of much of the use of law.  But this is delusional - there are still different types of law - and these are manipulated in order to shape our reactions to particular acts and to help us to brush others under the carpet.  So, on the one hand, political discourse is anxious to convince us that law and morality are the same and that our reactions are not just legal but righteous.  And on the other hand, that same discourse uses the diversity of types of law (here criminal law and laws of wars) to choose which morality should apply to particular cases.  There is a gap in our thinking, and thinking critically about it might help underline some of our double standards.

On the laws of war in the Middle Ages, see the seminal book by Maurice Keen.

Postscript: interestingly, Michael Adebowale has been charged with murder rather than terrorism offences after all (30th May).  In terms of rejecting the horrific violence he carried out, this strikes me as a far more effective response than acknowledging that he has some kind of political platform by categorising him as a terrorist.

TORTURE: CAN WE BRING OURSELVES TO SAY IT?

Fouquet's image of the martyrdom of St Apolline, Musée Condé, Chantilly

I’m in the process of reviewing a very interesting book about medieval torture.  As the author points out, it’s an appropriate time to be thinking about the question, given the rise of ‘enhanced interrogation techniques’ in recent years.  Although torture was practised in the medieval period, perhaps rather more often than this author claims, her central argument is a convincing one: that torture figured so often in medieval texts not because it was common in reality, but because it shocked readers so much that descriptions could effectively be used to demonize others.  And certainly, we tend to use references to torture in such a way now too – to distance ourselves from those who practise it, whilst denying our own complicity in its use.  What really interests me about medieval attitudes to torture is neither its use, nor the frequent denials.  It’s the ambivalence of medieval people regarding torture.

And one way in which that was effectively expressed was through euphemisms.  In fourteenth-century France, torture was referred to by the term ‘question’.  Those responsible could gloss over the brutal violence which this involved to focus on the supposed function of interrogating the accused.  The euphemism indicates that they weren’t quite comfortable with the level of pain and violence this involved, but nevertheless wanted to stress the function of the practice.  Is the phrase ‘enhanced interrogation techniques’ so very different?  And even if we know precisely what it really refers to, how are we to read our own reluctance to do something about it?

The book I am reviewing is Larissa Tracy's Torture and Brutality in Medieval Texts, published by Boydell in 2012.